Associate Dean Seigel uses some terrific supplementary materials
in his Evidence class which he has allowed me to share with you.
I am particularly happy with these materials because they often
raise important issues of criminal law and procedure. This is
the first of what I expect will be several handouts. The text
was produced by Prof. Seigel, I have only changed their layout.
-Prof. Malavet
BACKGROUND: In 1988, Nicodemo Scarfo and sixteen other individuals were indicted in Philadelphia on charges of racketeering, 18 U.S.C. S 1961-63. Scarfo, alleged to be the "Boss" of the Philadelphia family of "La Cosa Nostra," was accused in one of the racketeering acts of participating in the murder of a federal judge (Edwin Helfant).
[For further background, see U.S. v. Scarfo, 850 F.2d 1015 (3rd Cir. 1988) (anonymity of trial jurors and explanation of the reasons therefor to them not an abuse of discretion); U.S. v. Pungitore, et al., 910 F.2d 1084 (3rd Cir. 1990) (affirming RICO and conspiracy convictions)].
THE MEMORANDUM: The memorandum that follows was prepared during the first week of what turned out to be a four-month trial. It was written in response to what had occurred in court that day. Kenneth McNair was called as a witness by the government and testified as outlined in the memorandum. The defense objected to the testimony on the grounds of relevancy and asked that it be stricken from the record. The judge struck part of McNair's testimony immediately; he then recessed the trial and said that he would rule the next morning on whether the remainder of the testimony would be stricken as well. The memorandum was written during the night and presented to the judge before the trial was reconvened the next morning.
On Friday, September 30, 1988, the government called Kenneth McNair to the witness stand. McNair testified that Government Exhibit No. 2, a Smith and Wesson .38 caliber Airweight Revolver, serial number J238283 -identified as the murder weapon in the slaying of Judge Edwin Helfant (Racketeer-ing Act One in the Indictment)- was at one time in his possession. He testified that he traded the gun to Jerome Palumbo in approximately 1975, and that he knew Jerome Palumbo had a brother named John. He further stated that, when he was questioned by the police about the gun shortly after the Helfant murder, he lied in order to protect Palumbo. McNair testified that he believed that Palumbo knew he lied, but he answered "no" when asked if Palumbo had asked him to lie. On motion of the defense, McNair's testimony regarding the motiva-tion for his lying was stricken from the record.1 The government's evidence will show that Jerome Palumbo's brother John was a close associate of defendant NICODEMO SCARFO and other members of LA COSA NOSTRA, the alleged RICO enter-prise.
1. During the course of a side-bar proffer as to this witness's testimony, the government represented that he would state that Jerome Palumbo had asked him to lie to the police. The government's representation was fully supported by McNair's previous statements, including a sworn statement he gave to the New Jersey State Police on January 29, 1987 (relevant portions of which are attached hereto as Exhibit A). On that occasion McNair testified that he had lied to the police because he "was mostly covering up for the guy that I sold it to." Ex. A at 16. He further stated that he had spoken to Jerome Palumbo prior to talking to the police and had assured him that "I got a line for them." Ex. A at 17. Palumbo was "shook up" and was going off the "bad end." He told McNair "something like be cool, be cool or something like that there." Ex. A at 32-33. Palumbo accompanied McNair to the police barracks. Ex. A at 21-22. McNair told the police that he had sold the gun to Randy Frison because Frison was dead and "a dead man can't talk." During a pre-trial interview with a prosecutor, McNair answered in the affirmative when asked if Palumbo had asked that he cover for him.
McNair was ultimately prosecuted in connection with his possession of this gun, see Ex. A at 28-29, and he is a close friend of the Palumbo fail y. See Ex. A at 16. It is thus not surprising that, at trial, he retreated from his previous testimony regarding Palumbo's involvement in McNair's initial mistruths.
The government notes that McNair is not the only potentially hostile witness likely to be called during the course of the government's case. A hostile witness may be asked leading questions, see Fed. R. Evid. 611(c)*, and may even be impeached by the-party calling the witness. See Fed. R. Evid. 607.
In the instant case, the government chose not to impeach McNair
regarding his prior inconsistent statements because the participation
or knowledge of Jerome Palumbo regarding McNair's prior lies is
not necessary to establish the relevance of McNair's testimony
regarding the gun. See text.
The defense has vigorously challenged the relevancy of McNair's
testimony and future evidence concerning John Palumbo. For the
reasons stated below, the government submits that this evidence
is relevant and should be admitted.
The starting point for any discussion of relevancy in the federal
courts is Fed. R. Evid. 401, which states:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.
(Emphasis added.) This is a "'rather liberal standard' . . . . Under Rule 401, evidence is relevant if it has the slightest bit of probative worth; only evidence that has no value as proof of a consequential fact is irrelevant." 22 C. Wright & K. Graham, Jr., Federal Practice and Procedure 1 5165 at 49 (1978 & Supp. 1987) (emphasis added).
In McQueeny v. Wilmington Trust Company, 779 F.2d 916 (3d Cir. 1985), the Third Circuit examined the parameters of Rule 401 at some length. The court noted that the rule defines as relevant "evidence that has 'any tendency' to make 'a difference in the case." Id. at 922. It stated: "The plain meaning of the Rule demonstrates that the scope of relevant evidence is intended to be broad, and the authorities support such a broad reading. See United States v. Clifford, 704 F.2d 86, 90 (3d Cir. 1983); United States v. Steele, [685 F.2d 793, 808 (3d Cir.), cert. denied, 459 U.S. 908 (1982)]; Carter v. Hewitt, 617 F.2d 961, 966 (3d Cir. 1980) ('[t]he standard of relevance established by the Federal Rules of Evidence is not high')." Id.
Careful analysis leads to the inevitable conclusion that the proffered evidence in this case is relevant under the standard set forth in Rule 401. Government Exhibit 2, a 38 caliber Smith and Wesson revolver, has been identified as the murder weapon in the Helfant slaying. The government has alleged (in Racketeering Act One) that this gun was used by defendants NICODEMO SCARFO and NICHOLAS VIRGILIO to commit the murder. Kenneth McNair testified that he gave this very gun to Jerome Palumbo prior to the Helfant murder, and that Jerome Palumbo is the brother of John Palumbo. The government's evidence will show that, contemporaneous with the Helfant murder, John Palumbo was an associate of NICODEMO SCARFO and other members of LA COSA NOSTRA. This evidence certainly has a "tendency" to make "more probable" the allegation in the indictment. It therefore passes the Rule 401 test. Cf. United States v. Arnott, 704 F.2d 322, 325-26 (6th Cir. 1983) (weapons seized from co-conspirator's residence, in light of evidence that defendant visited this residence, relevant to distribution of cocaine charge as "tools of trade"); United States v. Stewart, 579 F.2d 356, 358 (5th Cir.) (shotgun found in stolen car used in bank robbery relevant even without proof that it was same as one used in robbery and seen in possession of defendant), cert. denied, 439 U.S. 936 (1978).
The defense argument is that this evidence is too remotely circumstantial to be admissible. This is not, in reality, an argument as to the relevance of the evidence; it is an argument that the evidence does not (or should not) carry much weight. "([T]he judge may not consider the weight of the evidence in determining relevance . . . the weight of the evidence is for the jury to determine . . . ." 22C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5165 at 50 (1978 & Supp. 1987).
Of course, not all relevant evidence is admissible. Pursuant to Fed. R. Evid. 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of 'the issues, misleading the jury,' or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. The government submits that the probative value of the prof-fered evidence is not outweighed by any of the factors enumer-ated in Rule 403. The defense may attempt to characterize this evidence as "prejudicial"; such an argument should be rejected. The evidence is "prejudicial"-i.e., it harms defendants' case-precisely because it is relevant. "'[U]nfair prejudice' as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party: Virtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair."' Dollar v. Long Mfg., N.C. Inc., 561 F.2d 613, 618 (5th Cir. 1977); see McQueeny , 779 F.2d at 923. There is nothing unfair about the evidence the government proposes to introduce, and thus it should be admitted during trial.
Respectfully submitted,
THOMAS H. LEE, II Acting United States Attorney Eastern District of Pennsylvania
JOEL M. FRIEDMAN Attorney in Charge Philadelphia Strike Force
LOUIS R. PICHINI Assistant Attorney in Charge
ALBERT H. GORDON Special Attorney
DAVID E. FRITCHEY Special Attorney
JOSEPH PETERS Special Attorney
September 30, 1988
After you read the memorandum, ask yourself the following questions:
(1) What is the government's theory that McNair's testimony about the gun is relevant?
- What is the "fact of consequence" which McNair's testimony makes more or less probable?
- How would you chart the chain of inferences implicitly relied upon by the government to get from McNair's testimony about the gun to the fact of consequence?(2) Are you convinced that the government's argument passes the hurdle of FRE 401?
(3) Could you make an argument that the relevancy of McNair's testimony is conditional upon proof of some other fact (under FRE 104 (b))? Would a 104 (b) argument be a good strategy for the defense?
(4) What about the 403 issue? If you were defense counsel, how would argue that the testimony concerning the gun amounted to unfair prejudice?
(5) What do you suppose was the government's original theory that McNair's testimony about his earlier lies was relevant (see footnote 1)? How did the change in McNair's testimony affect the relevancy of the prior lies? Was the court's decision to strike the testimony correct?
(6) Note that the government does not ask the judge to reconsider its earlier ruling regarding McNair's lies. So what was the point of writing footnote 1?
(7) The memorandum was ghost-written by an attorney who was not a member of the team prosecuting the case. Who was the ghost?